Out or Safe? Examining the UKSC’s Judgment on the Legality of Sending Asylum-Seekers to Rwanda

Notwithstanding the lofty aspirations associated with the customary principle of non-refoulement as reflected in Article 33 of the 1951 Refugee Convention, States are often hindered from carrying out their obligations under this rule due to countervailing pragmatic considerations, such as lack of capacity to accept mass influxes of new asylum-seekers. Consequently, several States have made arrangements to move asylum-seekers they cannot accept to supposedly safe third States (consider, for example, the Dublin III Regulation system in the EU and the Canada-U.S. Safe Third Country Agreement). As early as 1999, the UNHCR Executive Committee recognized a risk that such practices could lead to “improper denial of access to asylum procedures, or to violations of the principle of non-refoulement”, but a universal framework for assessing when a third State could be deemed “safe” was never introduced. This has resulted in inconsistency in practice with respect to when a third State can be considered “safe”, with the UNHCR suggesting as a minimum the application of Refugee Convention standards in the third State (para. 4) and the CJEU essentially only considering unsafe those States with “systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment” (para. 86) such as a “situation of extreme material poverty that does not allow the individual to meet his most basic needs” (paras. 91-93). The ECtHR has been internally inconsistent in its approach to this issue as well, ruling in K.R.S. v UK that a State’s guarantees of compliance with international human rights standards could be sufficient to classify it as “safe” only to backtrack three years later in M.S.S. v Belgium and Greece, saying there that the State’s situation had to be assessed objectively. In other cases, the ECtHR focused more on whether, upon arrival in the third State, the situation of the individual(s) would be prejudiced (paras. 103-105). With international bodies hardly able to coordinate standards among themselves, national bodies have been even less consistent, accepting as “safe” even States not party to the Refugee Convention (para. 36).

So when can a third State be considered “safe”? This question was put to the United Kingdom Supreme Court (“UKSC”) earlier this year with respect to a Memorandum of Understanding between the UK and Rwanda, which would have allowed asylum-seekers arriving in the UK to be transferred to Rwanda where their asylum application would be assessed there. In its decision handed down on 15 November 2023, the UKSC referred largely to the caselaw of the ECtHR to synthesize its own unique solution to this conundrum. Consequently, this post aims to provide an overview of the relevant elements of this decision before extrapolating a few key points that could be applied in the determination of when third countries can be treated as “safe”. These findings will subsequently be contrasted against the varying approaches taken by international bodies.

Overview of the UKSC’s decision

On the facts, six asylum applicants objected to being transferred by the UK to Rwanda, citing evidence provided by the UNHCR that Rwanda would have likely refouled them to a country where they could be exposed to ill treatment due to its questionable human rights record and general inability to process asylum claims (paras. 34-35). While the claim was initially dismissed by the Divisional Court, it was overturned by the Court of Appeals, and was then appealed to the UKSC by the Secretary of State (paras. 34-37). In its judgment, the UKSC agreed with the Court of Appeals, correcting the Divisional Court primarily on the manner in which it approached the evidence available to it.

In its assessment, the UKSC began by looking at Ilias v Hungary, focusing on its holding that a sending State must thoroughly and on its own motion examine whether the receiving State possesses an adequate asylum procedure, with due regard to reports from authoritative bodies such as the UNHCR (paras. 44-45). The UKSC then considered Othman v UK and Zabolotnyi v Mateszalka District Court, Hungary to reach the conclusion that a State cannot rely on assurances from the receiving State alone, and must consider other factors as well, such as the general human rights situation in the receiving State and its previous practices in processing asylum applications (paras. 47-49). With the foregoing in mind, the UKSC found adequate reason to reject the Divisional Court’s decision to “rest on a recognition of the expertise that resides in the executive to evaluate the worth of promises made by a friendly foreign state” (para. 51, see also 56 and 76) as opposed to examining, inter alia, the wealth of evidence provided by the UNHCR that Rwanda had regularly refouled asylum applicants in the past (paras. 58-63). The UKSC further criticized the lack of evidentiary weight accorded to the UNHCR’s reports by the Divisional Court, given its well-established status, role, expertise, and experience in refugee law (paras. 65-70). It then reaffirmed the Court of Appeals’ conclusions that Rwanda’s human rights situation was seriously concerning (paras. 75-76), its asylum procedure was severely defective at every stage of the process (paras. 77-94), and that it had previously failed to perform its obligations under a similar agreement with Israel, such that the Israeli Supreme Court ruled that program unlawful in 2018 (paras. 95-100). Before ending with the natural conclusion that the previous points collectively substantiated a real risk that the asylum applicants would have suffered ill treatment if they were to be turned over to Rwanda (paras. 101-105), the UKSC made it clear that it did not assume Rwanda was acting in bad faith or that its system could not, in the future, be developed to the extent that it could properly process asylum applicants (paras. 102 and 105).

Dissecting the UKSC’s approach

While there was no singular paragraph or section in which the UKSC described the precise criteria needed to classify a third State as “safe”, three key points can be inferred from the UKSC’s approach. Firstly, the UKSC preferred looking at whether human rights were objectively protected in the third State as opposed to merely relying formal promises, such as ratification of human rights conventions or guarantees of the existence of adequate asylum processes. Secondly, this factual assessment took into account all relevant circumstances in its assessment of whether a State was safe, including the State’s general human rights situation and previous failures to process asylum applicants. Thirdly, special weight was given to evidence provided by the UNHCR, given its expert status in the application of refugee law.

In comparison to the standards discussed at the beginning, the UKSC’s fairly cautious approach most closely resembles the current approach of the ECtHR and arguably provides a greater degree of protection to asylum applicants than the other standards provided. For example, with respect to the standard provided by the UNHCR, it is entirely feasible that a State applies standards from the Refugee Convention but fails to provide protection or respect for human rights situation in other contexts. With respect to the CJEU’s approach, the UKSC did refer to systemic flaws in the asylum procedure, but found those flaws sufficient to classify the system as unsafe without having to examine the extremeness of the situation an individual may find themselves in as a consequence of being processed by that system. With respect to the ECtHR, the UKSC appeared to embrace its more recent jurisprudence by objectively focusing on the situation in the third State. Furthermore, it implicitly rejected the obsolete approach taken in in K.R.S. v UK, in which the ECtHR considered Greece “safe” because (1) it had taken on international commitments to protect asylum applicants that had never been implemented (2) notwithstanding its history of failing to properly process asylum claims (3) as demonstrated by UNHCR reports.

All in all, the UKSC’s approach in this case is laudable. The only concern one may have is that its applicability in more borderline cases is questionable: after all, the UKSC never delineated an exact minimum standard of human rights protection that the third State had to provide. Furthermore, it was not too difficult to say the general human rights situation in Rwanda was problematic, given that there had been political and extrajudicial killings, deaths in custody, enforced disappearance, torture, and shooting of refugees protesting cuts to food rations (para. 76). Conversely, it would be interesting to see what the UKSC’s position would be with respect to a State where “minor” human rights violations would occasionally occur, but not on the gravity and frequency as the crimes committed in Rwanda. Nevertheless, given the specific circumstances of this case, the UKSC reached a sensible decision from a perspective of law, fact, and policy, and we can only hope that other courts and tribunals retain the same sensibilities in similar cases to come.